Guntrip v Cheney Coaches Ltd

Permission to replace a party’s named expert is a discretionary case-management decision. The court must apply the overriding objective, including justice to both parties, proportionality, expense, delay and the ability to meet the trial date. A change of opinion by the original expert, including after an experts’ discussion, is not by itself a good reason to permit a replacement expert.

An appellate court must not substitute its own discretionary assessment merely because it assigns different weight to the relevant factors. In assessing the prejudice caused by refusal, the first-instance judge may consider the apparent cogency and development of the proposed new evidence, but should not conduct a mini-trial. A late applicant bears a heavy burden of justification.

The claimant, a coach driver who had undergone knee replacement surgery, alleged that his employer caused or worsened his knee problems by requiring him to drive a coach with a manual clutch. His originally permitted orthopaedic expert ultimately agreed with the employer’s expert that the symptoms were likely to have occurred anyway.

Shortly before trial, the claimant applied to replace that expert with a new orthopaedic expert whose first explanation had been contradicted by a later exploratory operation. District Judge Payne refused permission. On the claimant’s appeal, His Honour Judge Corrie allowed the application. The employer then appealed to the Court of Appeal.

The central issue was whether Judge Corrie had been entitled to interfere with the District Judge’s discretionary case-management decision.

1. Appeal allowed. The Court of Appeal restored District Judge Payne’s refusal to permit the claimant to replace his named expert.

2. Permission to adduce or replace expert evidence is a discretionary case-management decision. The appellate question was therefore whether the Circuit Judge had been entitled to interfere with the District Judge’s exercise of discretion, rather than whether the Circuit Judge would himself have made a different decision. A disagreement about the appropriate weight of a material consideration, or about an evaluative factual conclusion which the District Judge was entitled to reach, was insufficient.

3. CPR Part 35 requires permission to call an expert and imposes an overriding duty to the court. That duty extends to an expert’s joint statement. As Stallwood v David [2006] EWHC 2600 (QB) correctly explained, an experts’ discussion may properly cause an expert to modify an earlier opinion. The resulting change of view does not alone justify obtaining another expert. A party that has chosen and deployed an expert must show a good reason for changing expert.

4. The overriding objective required justice to the employer as well as the claimant. District Judge Payne had considered the claimant’s loss of a viable case, the likely delay and additional cost, proportionality, the loss of the trial date, and the effect of delay on a fair trial. He was also entitled to consider, without conducting a mini-trial, that the proposed new evidence had limited value: its first explanation had been falsified by subsequent events, while its replacement explanation was tentative and sparsely reasoned.

5. A very late change of expert attracts the same strict approach as a late amendment. The applicant bears a heavy onus to justify the change in relation to both parties and other court users, and should put forward all expert material relied upon with the application. There was no flaw in the District Judge’s decision sufficient to permit appellate intervention.

• Court of Appeal (Civil Division): allowed the employer’s appeal and restored the refusal of permission to replace the claimant’s expert: [2012] EWCA Civ 392.

• Oxford County Court: District Judge Payne refused the claimant permission to rely on a replacement orthopaedic expert. His Honour Judge Corrie allowed the claimant’s appeal from that decision. No citation for either County Court decision is stated.